Control Data Corp. v. International Business Mach. Corp.

• Decision Date: 02 February 1970
• Docket Number: Misc. No. 640-642.
• Parties: CONTROL DATA CORPORATION, Petitioner, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Respondent. PROGRAMMATICS INCORPORATED and Applied Data Research, Inc., Petitioner, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Respondent. DATA PROCESSING FINANCIAL & GENERAL CORPORATION, Petitioner, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

421 F.2d 323 (1970)

CONTROL DATA CORPORATION, Petitioner, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Respondent.

PROGRAMMATICS INCORPORATED and Applied Data Research, Inc., Petitioner, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Respondent.

DATA PROCESSING FINANCIAL & GENERAL CORPORATION, Petitioner, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Respondent.

Misc. Nos. 640-642.

United States Court of Appeals, Eighth Circuit.

February 2, 1970.

John G. Robertson, of Oppenheimer, Hodgson, Brown, Wolff & Leach, St. Paul, Minn., for Control Data Corporation.

Morton C. Jacobs, of Jacobs & Cohen, Philadelphia, Pa., for Programmatics Incorporated and Applied Data Research, Inc.

Victor S. Friedman, of Strasser, Spiegelberg, Fried & Frank, New York City, for Data Processing Financial & General Corporation.

Norman R. Carpenter, of Faegre & Benson, Minneapolis, Minn., and Thomas D. Barr, of Cravath, Swaine & Moore, New York City, for respondent.

Before MEHAFFY and LAY, Circuit Judges.

LAY, Circuit Judge.

This matter comes before this court upon joint petitions for leave to file interlocutory appeals under 28 U.S.C. § 1292(b) from the district court's pretrial order. Suits were filed against International Business Machines Corporation (IBM) on various counts relating, inter alia, to violation of the Clayton and Sherman Antitrust Acts. Control Data Corporation (CDC) filed its suit in the District Court in Minnesota. Data Processing Financial & General Corporation (DPF&G), Applied Data Research, Inc. (ADR) and Programmatics Incorporated (PI) all filed their suits in the District Court of the Southern District of New York. By order of the Judicial Panel on Multidistrict Litigation filed July 31, 1969, the cases were transferred to the District Court in Minnesota for consolidated pretrial proceedings under 28 U.S.C. § 1407.

The district court's pretrial order reflects that in 1935, as well as in 1956, consent decrees were entered against IBM in antitrust litigation with the federal government. At pretrial conference IBM moved to strike from each of the four complaints all allegations relating to these consent decrees. In the complaints of DPF&G and ADR separate counts set forth a claim for single damages on a third party benefit contract theory based upon IBM's violation of the consent decrees. These separate counts were ordered dismissed by the district court. In addition to certifying these dismissals under § 1292(b) the district court made a finding pursuant to Fed. R.Civ.P. 54(b) that there existed no just reason for delay with respect to the entry of such judgment and directed the entry of judgment for purposes of appeal. In view of the fact that an otherwise appealable final judgment has been entered in those cases the propriety of docketing an interlocutory appeal under § 1292(b) as to the counts ordered dismissed is made moot. Cf. Sass v. District of Columbia, 114 U.S.App.D.C. 365, 316 F.2d 366 (1963).

However, the district court also ordered:

"As to (1) the order striking all references contained in the various complaints to the 1935 and 1956 decrees and the concomitant prayers for relief, (2) the order heretofore made, and as clarified herein, providing that evidence of the said decrees will not be admitted in evidence and no reference thereto shall be permitted at trial * * * the Court is of the opinion that, within the meaning of 28 U.S.C. § 1292(b), such orders involve controlling questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal from such orders may materially advance the ultimate termination of the litigation."

It has, of course, long been the policy of the courts to discourage piecemeal appeals because most often such appeals result in additional burdens to both the court and the litigants. Permission to allow interlocutory appeals should thus be granted sparingly and with discrimination, Switzerland Cheese Association, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed. 2d 23 (1966); World Tradeways, Shipping, LTD. (Steamship Tradeways II) v. Nimpex Intern., Inc. 373 F.2d 860 (2 Cir. 1967); Atlantic City Electric Company v. A. B. Chance Co., 313 F.2d 431 (2 Cir. 1963); United States v. Woodbury, 263 F.2d 784 (9 Cir. 1959). In order to permit interlocutory appeals the issues involved should, in the determination of the appellate court, as well as the trial court, raise a controlling question of law and must materially advance the ultimate termination of the law suit. See 6 Moore, Federal Practice § 54.06 (Supp.1969).

Keeping within the spirit of these principles, we feel compelled to deny permission to docket the present interlocutory appeals. We are persuaded that an early ruling on the points certified by the district court could only be hypothetical or advisory as to what may or may not be admissible in the actual trial itself. If a proper order could serve the function of doing all the district court or parties desire, we would not hesitate to grant leave to appeal. However, whether reference to the consent decrees may be made or whether the decrees themselves are admissible in evidence cannot be decided by this court at this time upon a record that is yet to be made.

As the district court's order recognizes, the parties do not claim that the consent decrees are prima facie evidence as to subsequent violations of the antitrust laws under § 5(a) of the Clayton Act. Cf. City of Burbank v. General Elect. Co., 329 F.2d 825 (9 Cir. 1964).

Thus on an appeal from the order striking all reference to these decrees in the pleadings, the issue would narrow itself to whether the district court abused its discretion in making this order. Such a discretionary ruling is not one that constitutes a controlling question of law or one that can possibly advance the ultimate termination of the litigation. City of Burbank v. General Elect. Co., supra. Notice pleading is all that is generally required under Fed.R. Civ.P. 8, even in antitrust cases. See Great A. & P. Tea Co. v. Amalgamated Meat Cutters & Butcher Workmen, 410 F.2d 650 (8 Cir. 1969); Clausen & Sons, Inc. v. Theo. Hamm Brewing Co., 395 F.2d 388 (8 Cir. 1968); Louisiana Farmers' Protective Union v. Great A. & P. Tea Co., 131 F.2d 419 (8 Cir. 1942). We do not agree with the district court that striking the evidentiary statements from the complaints and yet later allowing admissibility of the evidence stricken would result in a self-contradiction. It has long been basic to good pleading that evidentiary matters be deleted. Such deletion does not control the questions of materiality and relevancy governing evidentiary use. Commissioner of Internal Revenue v. Licavoli, 252 F.2d 268 (6 Cir. 1958); Cater Const. Co. v. Nischwitz, 111 F.2d 971 (7 Cir. 1940).

The district court's order also prohibits any reference at trial to the consent decrees since it would prejudicially implant in the minds of the jury the idea that there had been a prima facie violation of the antitrust laws. However, we hold that a determination by this court as to whether or not there is "prejudicial" reference to the decrees must await the full context of such reference. The parties have been warned that in the absence of some further showing of relevancy the district court will consider any reference to the decrees to be an attempt to prejudice the jury. Whether such ruling is prejudicially erroneous depends upon the factual proof elicited at trial and cannot be ruled upon here. We cannot say, at the pleading stage, that such a ruling is a controlling question of law which may advance the ultimate termination of the litigation. In effect, plaintiffs seek an advisory opinion as to their right to make reference to the consent decrees, before we know what the reference will be or the context of the subject matter surrounding it.

This posits the only possible basis of review on the district court's pretrial ruling...